[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Rules and Regulations]
[Pages 69159-69161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26494]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 232 / Tuesday, December 7, 2021 / 
Rules and Regulations  

[[Page 69159]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Doc. No. AMS-SC-21-0040; SC21-915-1 FR]


Avocados Grown in South Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service (AMS), Department of Agriculture 
(USDA).

ACTION: Final rule.

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SUMMARY: This rule implements a recommendation from the Avocado 
Administrative Committee to increase the assessment rate established 
for the 2021-22 and subsequent fiscal years. The assessment rate will 
remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective January 6, 2022.

FOR FURTHER INFORMATION CONTACT: Abigail Campos, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Region Branch, 
Market Development Division, Specialty Crops Program, AMS, USDA; 
Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 121 
and Marketing Order No. 915, both as amended (7 CFR part 915), 
regulating the handling of avocados grown in south Florida. Part 915, 
(referred to as ``the Order'') is effective under the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 
hereinafter referred to as the ``Act.'' The Avocado Administrative 
Committee (Committee) locally administers the Order and is comprised of 
growers and handlers operating within the area of production, and a 
public member.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    This rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. AMS has determined this rule is unlikely to 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the Order now in effect, Florida avocado handlers 
are subject to assessments. Funds to administer the Order are derived 
from such assessments. It is intended that the assessment rate be 
applicable to all assessable Florida avocados for the 2021-22 fiscal 
year, and continue unless amended, suspended, or terminated.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. Such 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This rule increases the assessment rate, established for the 
Committee for the 2021-22 and subsequent fiscal years, from $0.35 to 
$0.45 per 55-pound bushel container of avocados.
    The Order authorizes the Committee, with the approval of USDA, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. Nine of the ten members of the 
Committee are producers and handlers of Florida avocados. They are 
familiar with the Committee's needs and with the costs for goods and 
services in their local area and are able to formulate an appropriate 
budget and assessment rate. The assessment rate is formulated and 
discussed in a public meeting and all directly affected persons have an 
opportunity to participate and provide input.
    For the 2016-17 and subsequent fiscal years, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal year to fiscal year unless modified, suspended, 
or terminated by USDA upon recommendation and information submitted by 
the Committee or other information available to USDA.
    The Committee met on April 14, 2021, and recommended 2021-22 
expenditures of $348,484 and an assessment rate of $0.45 per 55-pound 
bushel container of avocados. In comparison, the previous fiscal year's 
budgeted expenditures were $280,484. The assessment rate of $0.45 is 
$0.10 higher than the rate currently in effect. During the last few 
fiscal years, the Committee has not funded research projects. However, 
the laurel wilt disease continues to challenge the avocado industry. 
The Committee

[[Page 69160]]

discussed the need for research funding and added $80,000 to its 
proposed budget for this research and recommended increasing the 
assessment rate to cover the additional expense. At the current 
assessment rate, assessment income would equal only $280,000, an amount 
insufficient to cover the Committee's anticipated expenditures of 
$348,484. By increasing the assessment rate by $0.10, assessment income 
will be $360,000. This amount should provide sufficient funds to meet 
2021-2022 anticipated expenses.
    Major expenditures recommended by the Committee for the 2021-22 
fiscal year include $116,164 for salaries, $80,000 for research, and 
$53,350 for employee benefits. Budgeted expenses for these items in 
2020-21 were $116,164, $0, and $53,350, respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses, expected shipments of Florida avocados, 
and fiscal the level of funds in reserve. Avocado shipments for the 
year are estimated at 800,000 55-pound bushel containers, which, as 
mentioned before, should provide $360,000 in assessment income (80,000 
containers x $0.45). Income derived from handler assessments at the new 
rate, along with interest income, should be adequate to cover budgeted 
expenses. Funds in the reserve (currently about $250,000) will be kept 
within the maximum permitted by the Order (approximately three fiscal 
years' expenses as authorized in Sec.  915.42).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will be in effect for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal year to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of Committee meetings are available from the Committee or USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2021-22 budget and those 
for subsequent fiscal years will be reviewed and, as appropriate, 
approved by USDA.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this rule on small entities. 
Accordingly, AMS has prepared this final regulatory flexibility 
analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 325 producers of Florida avocados in the 
production area and 25 handlers subject to regulation under the Order. 
Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts less than 
$1,000,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to the National Agricultural Statistical Service (NASS), 
the average grower price paid for Florida avocados during the 2020-21 
fiscal year was $21.97 per 55-pound bushel. Utilized production was 
equivalent to 624,364 55-pound bushels for a total value of 
approximately $13,718,830. Dividing the crop value by the estimated 
number of producers (325) yields an estimated average receipt per 
producer of $42,212, so the majority of producers will have annual 
receipts of less than $1,000,000.
    USDA Market News reported April 2021 terminal market prices for 
green skinned avocados were about $36.43 per 24-pound container. Using 
this price and the total utilization, the total 2020-21 handler crop 
value is estimated at $52.1 million. Dividing this figure by the number 
of handlers (25) yields an estimated average annual handler receipts of 
over $2 million, which is below the SBA threshold for small 
agricultural service firms. Thus, the majority of Florida avocado 
producers and handlers are classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2021-22 and subsequent 
fiscal years from $0.35 to $0.45 per 55-pound bushel container of 
avocados. The Committee recommended 2021-22 expenditures of $348,484 
and an assessment rate of $0.45 per 55-pound bushel container. The 
assessment rate of $0.45 is $0.10 higher than the previous rate. The 
quantity of assessable avocados for the 2021-22 season is estimated at 
800,000 55-pound bushel containers. Thus, the $0.45 rate will provide 
$360,000 in assessment income and be adequate to meet this year's 
expenses.
    Major expenditures recommended by the Committee for the 2021-22 
fiscal year include $116,164 for salaries, $80,000 for research, and 
$53,350 for employee benefits. Budgeted expenses for these items in 
2020-21 were $116,164, $0, and $53,350, respectively.
    In recent years, the Committee did not fund any research. However, 
Committee members believe further research is needed to address laurel 
wilt disease and voted to commit $80,000 to research in the coming 
fiscal year. At the current assessment rate and with the 2021-22 crop 
estimated to be 800,000 55-pound bushel containers, assessment income 
would equal only $280,000, an amount insufficient to cover the 
Committee's anticipated expenditures of $348,484. By increasing the 
assessment rate by $0.10, assessment income would be approximately 
$360,000. This amount will provide sufficient funds to meet 2021-22 
anticipated expenses. Consequently, the Committee recommended 
increasing the assessment rate.
    Prior to arriving at this budget and assessment rate, the Committee 
considered information from various sources, including its Research 
Subcommittee. The Committee discussed alternative expenditure levels 
based upon the relative value of various activities to the south 
Florida avocado industry. The Committee ultimately determined that 
2021-22 expenditures of $348,484, including the additional funds for 
research, were appropriate, and the recommended assessment rate, along 
with interest income, should generate sufficient revenue to meet its 
expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming season indicates that the grower price for 
the 2021-22 season should be around $20-25 per 55-pound bushel 
container of avocados. Therefore, the estimated assessment revenue for 
the 2021-22 fiscal year as a percentage of total grower revenue would 
be between 1.8 and 2.25 percent.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Additionally, these 
costs will be offset

[[Page 69161]]

by the benefits derived by the operation of the Order.
    The Committee's meeting was widely publicized throughout the 
Florida avocado industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the April 14, 2021, meeting was a 
public meeting, and all entities, both large and small, were able to 
express views on this issue.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. 
No changes in those requirements are necessary as a result of this 
action. Should any changes become necessary, they would be submitted to 
OMB for approval.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large Florida avocado handlers. As with 
all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. As noted in the 
initial regulatory flexibility analysis, USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    A proposed rule concerning this action was published in the Federal 
Register on August 24, 2021 (86 FR 47248). Copies of the proposed rule 
were also mailed or sent via email to all Florida avocado handlers. The 
proposal was made available through the internet by USDA and the Office 
of the Federal Register. A 30-day comment period ending September 23, 
2021, was provided for interested persons to respond to the proposal.
    During the comment period, one comment was received in response to 
the proposal. The comment received did not address the merits of this 
rule. Accordingly, no changes will be made to the rule as proposed, 
based on the comment received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 915 is 
amended as follows:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

0
1. The authority citation for 7 CFR part 915 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.


0
2. Section 915.235 is revised to read as follows:


Sec.  915.235   Assessment rate.

    On and after April 1, 2021, an assessment rate of $0.45 per 55-
pound container or equivalent is established for avocados grown in 
South Florida.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-26494 Filed 12-6-21; 8:45 am]
BILLING CODE 3410-02-P